J ASoleSourceDFAFtBliss.pdf

MICC Control No. MICC 2015- 128 Bliss 2015-6

Justification and Approval for Other Than Full and Open Competition

Program/Equipment: Dining Facility Attendant Services

Authority: 10 U. S. C. Section 2304 (c)(1) as implemented in Federal Acquisition Regulation 6.302- 1(a)(2)(iii)(B); Only one responsible source and no other supplies or services will satisfy agency requirements.

Amount: $3.7M

Prepared by:

Name: Philip Johnson Phone: (915)568-1711 Title: Contract Specialist Date: 16 March 2015 Email: philip.k.johnson12.civ@mail.mil

Contracting Officer:

Name: Melissa Garcia Phone: (915)568-5200 Title: Contracting Officer Date:

Email: melissa.garcia5.civ@mail.mil

Technical Representative:

Name: Jose L. Escalante Phone: (915) 568-0434 Title: Contracting Officer Representative Date:

Email: jose.escalante2@us.army.mil

Requirements Representative:

Name: Jeff Morgan Phone: (915) 568-4605 Title: Food Program Manager Date:

Email: jeff.j.morgan.civ@mail.mil

Reviews: I have reviewed this justification and find it adequate to support other than full and open competition.

Legal Counsel Phone: (915) 568-5832

X Mary Dryer

MICC Control No. MICC 2015- 128 Bliss 2015-6

Justification and Approval for Other Than Full and Open Competition

1. Contracting Activity: Mission and Installation Contracting Command (MICC)-Fort Bliss, Texas

2. Description of Action: Approval is requested to award a new contract for Dining Facility Attendants (DFA) to Harvey Johnson D/B/A United Freedom Associates (UFA) to ensure continued dining facility support services at the U.S. Army Fort Bliss, Texas, until court ordered arbitration, based on a previous injunction filed by UFA in September 2014 is completed and a follow-on contract awarded. The arbitration panel's first meeting will not occur until 20 January 2016, and based on previous legal experience with other arbitration hearings a decision could be reached in as little as 45 days to as long as five (5) months after that initial meeting. If the Government prevails an additional six (6) to eight (8) months will be required to solicit, evaluate, award and transition the work to a follow-on contract. Therefore a performance period for up to 12 months represents the Government's most realistic timeline to award a follow-on contract for these critical services.

This requirement will be awarded as a Firm, Fixed-Price (FFP) type contract. Fiscal Year 2015 (FY15) Operations & Maintenance (OMA) funding is currently available for this requirement in the amount of $3.7M.

3. Description of Supplies/Services:

a. Fort Bliss requires DFA services to meet the needs of the military and civilian personnel assigned to or in transit at Fort Bliss, TX. The Contractor shall provide all supervision, labor, equipment, materials, supplies, transportation, and other items and non-personal services necessary to perform DFA services at Fort Bliss, TX. Currently there are a total of four (4) DFA facilities in use at Fort Bliss serving in excess of 2,000 meals a day. DFA services include cleaning and sanitizing dinnerware, utensils, trays, facilities and equipment. DFAs provide pre and post-meal clean-up, and other associated DFA support not accomplished by the government or contracted full food service (FFS) personnel.

b. The total estimated value of this 12-month period is $3.7M. The new work will be priced, evaluated, and negotiated for price reasonableness prior to award.

4. Authority Cited: 10 U.S.C. 2304(c)(1), as implemented by FAR 6.302-1, “Only One Responsible Source and No Other Supplies or Services Will Satisfy Agency Requirements.” This requirement must be awarded on a sole source basis due to the issuance of an injunction by United States District Court for the Western District of Texas, El Paso Division, which precludes the award of a contract for DFA services to other than the incumbent contractor until the completion of the arbitration between the U.S. Army, U.S. Department of Education, Texas Department of Assistive and Rehabilitative Services (TDARS), and the incumbent contractor, Harvey Johnson D/B/A UFA.

5. Reason for Authority Cited:

a. Background:

Historically, the requirements for Full Food Service (FFS) and DFA in support of the U.S. Army, Ft. Bliss, TX have been solicited and awarded to a Randolph-Sheppard Act (R-SA) vendor IAW Section 856 of the John Warner National Defense Authorization Act of Fiscal Year 2007, Pub. L. No. 109. The R-SA provides preferential hiring treatment to blind persons in the carrying out of vending services at

MICC Control No. MICC 2015- 128 Bliss 2015-6 federal facilities and on federal reservations. Both the FFS and DFA were awarded to a single R-SA vendor under a single contract in 2004 although technically there is no R-SA priority for services other than FFS. The reason is that FFS services are related to vending services; food preparation, handling and serving. DFA services are custodial in nature encompassing the cleaning and sanitation of the dining facility before, during and after meals.

Acquisition planning was conducted in 2014 for a follow-on contract to W911SG-10-D-0005 which would expire on 25 Sept 2015. During planning, a determination was made that the FFS and DFA would be separately competed as the DFA services did not fall under the R-SA. Therefore, separate acquisition strategies were developed, staffed and approved under Principal Assistant Responsible for Contracting (PARC) authority and the FFS and DFA service requirement separately solicited.

Solicitation W911SG-14-R-0005 for DFA services was posted 2 July through 2 August 2014.

The solicitation was issued as a 100% set-aside for small business without preference to the R-SA vendor per the approved acquisition strategy. MICC–Fort Bliss was near award of a new DFA services contract when a blind vendor and TDARS filed for a preliminary injunction on 28 August 2014. They argued that application of the R-SA was applicable to the DFA services and therefore priority of award should be to an R-SA vendor. The Army argued that its policy is that when only DFA services are required apart from Full Food Services, it does not meet the definition of “operating cafeteria services” and therefore, not subject to the R-SA.

As of 12 September 2014, the United States of America and consequently the U.S. Army are restrained and enjoined from conducting any procurement in connection with solicitation W911SG-14-R- 0005. To prevent a break in services a sole source J&A to the incumbent Contractor was developed and subsequently approved by Mr. Dean M. Carsello on 24 Sep 2014, MICC Control No. 14-101 BLISS 14-

60. A one (1) year Task Order (TO) W911SG-10-D-0005-0015 was awarded on 26 Sep 2014 and is due to expire on 25 September 2015.

Award to a source than the incumbent before an arbitration decision is reached in this matter would violate the court order of Federal District Judge David C. Guaderrama. Due to this restraining order/preliminary injunction, the only feasible method of ensuring continuity of these vital services is to continue contracting with the incumbent contractor until the arbitration process is completed, a decision announced, and the Army is able to solicit and award a follow-on contract.

b. Alternatives:

Due to the court injunction there is no alternative to awarding a contract to the incumbent R- SA contractor to meet the Army’s on-going requirement for DFA support services.

1) Forego Service: Fort Bliss has four (4) dining facilities on the installation that require DFA services. These facilities serve in excess of 2,000 meals per day to the 1,600 Soldiers in training for redeployment. Contracted service is the only option other than closing down the dining facility operations which would have a negative impact to the life, health, and well-being of the Soldier either deploying or transitioning through Fort Bliss. Ft. Bliss does not have an alternate means to feed these Soldiers should the dining facilities close. In addition, the Soldiers in training do not have the time or access to transportation to seek meals elsewhere without seriously disrupting training and at a cost significantly higher than those charged in the dining facilities. This is not a viable alternative.

2) Soldier-run dining facilities: There are no organic uniformed or Department of Army (DA) civilian resources available to perform these services supporting the four DFA dining facility operations.

This is not a viable alternative.

MICC Control No. MICC 2015- 128 Bliss 2015-6

3) Competitively award a separate contract: The issuance of a preliminary injunction on 12 September 2014 prevents the award of any contract for DFA services to another contractor. The district judge granted the motion on 12 Sep 2014 which enjoins the Department of Defense from conducting any procurement actions, including making any award of a contract, entering into a contract, or initiating performance under such contract, in connection with a solicitation for DFA support services until such time as the arbitration proceeding required by the Act is concluded.

Therefore, initiating a new competitive procurement action is not a viable alternative.

4) Extend the current contract: There is no current contract. As stated above, contract W911SG-10-D-0005 expired on 25 September 2014, and the current service, which was obtained under TO W911SG-10-D-0005-0015 which was issued prior to that contract’s ordering period end date, is due to expire on 25 September 2015.

c. Justification: Due to the unique situation fostered by the injunction and pursuant to FAR 6.302-1(b)(1)(i), only the incumbent can provide DFA support until the issue is decided by the arbitration panel and a follow-on contract can be solicited and awarded.

d. Prior Acquisitions: The last contract, W911SG-04-D-0003, was awarded as a sole-source Indefinite Delivery, Indefinite Quantity (IDIQ) contract to Harvey Johnson D/B/A UFA, the licensed vendor selected by TDARS for both FFS and DFA services at Fort Bliss installation.

Contract W911SG-04-D-0003 was awarded on 31 March 2004; this contract included a one-year base period plus nine (9) one-year option periods. On 16 March 2010, modification P00061 was issued to specify that “Due to systemic technical problems in PD2, the remainder of this contract will be performed under contract number W911SG-10-D-0005”. Therefore, contract W911SG-10-D-0005 was the continuation of the original contract awarded in March 2004. Contract W911SG-10-D-0005 expired on 25 September 2014.

e. Impact: Failure to approve this J&A will result in the inability of the Fort Bliss Logistic Readiness Center (LRC) to provide food services to assigned and attached uniformed Soldiers. Regular operations would be interrupted and deployment activities would be affected. The inability to award a 12 month sole-source contract would result in a break in DFA support service.

6. Efforts to Obtain Competition: No action has been taken to obtain competition for this acquisition due to the injunction and the ongoing arbitration process.

7. Actions to Increase Competition: There is nothing that can increase competition for the current action due to the injunction. If the arbitration decision supports the Government’s position, the cancelled solicitation has shown that there is adequate competitive interest in this requirement. If the decision favors the R-SA, then competition will be restricted as award preference will be given to the R-SA vendor.

8. Market Research: Appropriate market research was conducted for the cancelled DFA solicitation and that information remains unchanged with the exception that for this request the injunction limits the award to the incumbent R-SA contractor. All applicable mandatory sources for services were considered IAW FAR Part 8. The MICC enterprise solutions contract list was reviewed and it was determined that there are no strategic sourcing opportunities available through any of these contracts.

Services are currently being performed by TDARS through its R-SA-licensed vendor IAW Section 856 of the John Warner National Defense Authorization Act of Fiscal Year 2007, Pub. L. No. 109, which has priority and, therefore, Ability One was not considered for this requirement.

MICC Control No. MICC 2015- 128 Bliss 2015-6

9. Interested Sources: See paragraphs 6 and 7 above.

10. Other Facts:

a. Procurement History:

PROCUREMENT HISTORY

b. Acquisition Data Availability: N/A

c. Subcontracting Competition: This contract with TDARS does not require a small business sub-contracting plan.

11. Technical Certification: I certify that the supporting data under my cognizance included in this justification are accurate and complete to the best of my knowledge and belief.

9/17/2015

X Jose L Escalante Jose L. Escalante

COR, LRC

Signed by: ESCALANTE.JOSE.LUIS.1131023290

12. Requirements Certification: The requirement herein described is a valid requirement of the activity named in this justification. The technical and requirements information contained in this justification represent the minimum needs of the government. The only way to satisfy this requirement is by limiting competition as described herein.

9/17/2015

X Jeff J. Morgan Jeff J Morgan Food Program Manager Signed by: MORGAN.JEFF.JEROME.1040047235

13. Fair and Reasonable Price Determination: I hereby determine that the anticipated price for this contract will be fair and reasonable. The techniques identified at FAR 15.404-1(b)(2)(ii) will be used to ensure award will be made at a fair and reasonable price. The Contracting Officer will conduct an analysis of the proposed prices with other contracts within the Army, other DoD agencies, Contract Number Contract Type Period of Performance Contract Value

W911SG-04-D-0003

Texas Dept of Assistive and

Rehabilitative Services

(TDARS)

FFP 01 Apr 04 – 31 Mar 10 $315M

W911SG-10-D-0005

Texas Dept of Assistive and

Rehabilitative Services

(TDARS)

FFP 01 Apr 10 – 25 Sep 15

To include a five-month, one-month, and twelve-month extensions utilizing FAR

52.217-8

$132M

MICC Control No. MICC 2015- 128 Bliss 2015-6 and with other commercial market prices to determine fair and reasonable price. Considering that the current performance work statement is being used to extend services, current prices being paid will also be used as a valid basis for determining a fair and reasonable price. Certified cost and pricing data will not be obtained.

9/17/2015

X Melissa Garcia Contracting Officer Signed by: GARCIA.MELISSA.1283192039

14. Contracting Officer Certification: I certify that this justification is accurate and complete to the best of my knowledge and belief.

9/17/2015

X Melissa Garcia Contracting Officer Signed by: GARCIA.MELISSA.1283192039

MICC Control No. MICC 2015- 128 Bliss 2015-6

Approval

Based on the foregoing justification, I hereby approve an up to Twelve (12) month contract for DFA services to be awarded to TDARS on behalf of Harvey Johnson D/B/A UFA in the estimated amount of $3.7M, on an other than full and open competition basis pursuant to the authority of 10 U.S.C.

2304(c)(1) as implemented in Federal Acquisition Regulation 6.302-1; only one responsible source and no other supplies or services will satisfy agency requirements, and provided the services herein described have otherwise been authorized for acquisition.

Date: ______________________________

X Dean M. Carsello Special Advocate for Competition

U.S. Army Mission and Installation Contracting Command, Ft Sam Houston TX

18 SEP 15

Jennifer L. Hastedt Special Advocate for Competition

HASTEDT.JENNIFE

R.LEE.1233400552

Digitally signed by

HASTEDT.JENNIFER.LEE.1233400552

DN: c=US, o=U.S. Government, ou=DoD, ou=PKI, ou=USA, cn=HASTEDT.JENNIFER.LEE.1233400552 Date: 2015.09.18 15:58:13 -05'00'